Bell's Executors v. Bell

A devisee of laud which is subject to the dower of the widow of a former owner, takes it cum onere; and is not entitled to be reimbursed out of the testator's residuary estate. An action against executors to recover money paid by a devisee, which was properly chargeable on the residuary estate, is within the jurisdiction of a justice; and, if such action be commenced in the Common Pleas, without a previous affidavit, the plaintiff cannot recover costs.

Error to the Common Pleas of Gfreene county. This was an action of assumpsit, by Morgan Bell against the executors of John Bell, deceased, for reimbursement of a sum of money paid by him, in exoneration of lands devised to him by the testator, which he alleged was properly chargeable on the residuary estate in the hands of the executors. In 1829, under proceedings in partition in the Orphans’ Court, the real estate of Andrew Cowell, deceased, was appraised, subject to the widow’s dower; and accepted at the valuation by William Cowell, one of the heirs, who entered into the usual recognisance. On the 16th March 1830, William Cowell conveyed the same premises to John Bell, subject to the widow’s dower; and by his will, dated the 18th November 1853, John Bell devised the same to his son, Morgan Bell, the plaintiff, in fee, and appointed the defendants his executors. The plaintiff having paid the dower of the widow of Andrew Cowell, deceased, brought this suit for reimbursement out of the personal estate of his father, the said John Bell. On the trial, the plaintiff requested the court to charge the jury:— That the agreement of Bell and Cowell, by which the latter took the land for the former; the making of a deed on the next day after the according of the land by the court; the payment or purchase by Bell of Cowell’s interest in the third of the valuation-money, which was payable at the death of the widow; the payment of the annual interest on said third to the widow, for upwards of 20 years, and for 8 years after the date of the will — plaintiff living on the land in the mean time — the running off of a part of the encumbered land to another farm, and devising it to other sons — the general provisions of the will, and the erasures and interlineations in the devise to the plaintiff, are facts from which the jury may infer an election on the part of John Bell to make said dower his own proper debt, and to relieve the land in the hands of plaintiff. The court below answered this point in the affirmative. The defendants presented the following points upon which they requested the court to instruct the jury:— 1. That if John Bell made this his personal debt, such liability is merely subordinate to the obligation of the recognisance; and his personal estate cannot be resorted to, until the land bound by the recognisance proves insufficient to pay the same. 2. That even if John Bell, Sr., did make the claim in suit his own debt, as to William Cowell, the plaintiff in this suit cannot recover. 4. That there is not sufficient evidence, even if believed by the jury, that the testator agreed to make the debt his own, and the plaintiff cannot therefore recover. The court below answered these points in the negative; and the defendants excepted to the same, as also to-the answer to the plaintiff’s point. There was a verdict for the plaintiff for $67.75, on which the court below entered judgment without costs; whereupon writs of error were sued out by both parties; the defendants below complaining of the charge to the jury; and the plaintiff of the entry of judgment without costs.